Abstract

Historically, the criminal law system has justified and condoned male violence against women. It allowed a man to use “reasonable” force to ensure the respect and obedience of his spouse; it immunized husbands from prosecution for rape of their wives; it did not sanction the rape of “bad girls”, and it ignored most forms of child abuse. Our law did not even recognize the existence of sexual harassment until the mid-eighties, and the use of professional and religious power to sexually exploit subordinates has only recently been acknowledged and condemned by our justice system.

More specifically, special evidentiary and substantive rules were developed for cases of wife-assault. Indeed, a woman cannot be compelled to testify against her husband, even in a case where he is accused of assault against her. This principal of “marital unity” historically “privatized” her complaint and forced her to bear the onus of any criminal proceeding in the matter. If found guilty of assault, a husband would benefit from a more lenient sentence if the victim of the crime was his wife. Wives were forbidden to file civil suits against their husband for damages until at least 1982 in Quebec, until 1990 in Saskatchewan, and may still be so barred in New Brunswick, according to a 1994 Queens Bench decision. Even today, women who decide to file a police complaint against their husbands face a criminal law system that often re-victimizes them and cannot ensure their basic security and freedom.

Violent men who assault their wives have benefitted from a variety of specific excuses afforded by different components in the legal system. The excuse that we want to address specifically in this brief is codified as the defence of provocation in s.232 of the Criminal Code. Our analysis of the defence of provocation is inspired by the egalitarian human rights standards entrenched in the Canadian Charter of Rights and Freedoms, as well as by international human rights law.

Since the end of World War II, egalitarian principles and the recognition of the universality of human rights have been the touchstone of international law. The Universal Declaration of Human Rights and other international law instruments are premised on the right to equality. Women’s equality has been proclaimed numerous times, and many instruments have set out principles and specific mechanisms to give it practical effect, including the Convention on the Elimination of All Forms of Discrimination Against Women and the Declaration on the Elimination of Violence Against Women.

In Canada, formal recognition of women’s equality rights was achieved in 1982 with the adoption of the Charter and more particularly with the inclusion of ss. 15 and 28, which provide equality rights for women and other historically disadvantaged groups. The introduction of the Charter has fundamentally altered Canadian law, since the primacy attributed to egalitarian values marks a break with the colonialist, pro-slavery, and patriarchal heritage of the common law and the civil law. By making equality a fundamental value in the Canadian Constitution, the constitutional reform initiated a radical rejection of a system of rights based domination and subordination.

The principle that government action must benefit all groups equally without further exacerbating existing inequalities means that the government’s mandate has been radically redefined. It must broaden the scope of its action to benefit groups that have historically been excluded from the social contract, and mobilize its resources to govern the state in the best interests of all men and women, from all conditions and communities, without discrimination. The constitutionalization of equality rights has also created new obligations for the government, since it must not only refrain from discriminating, but it must also take concrete steps to ensure that disadvantaged groups receive full and equal protection and benefit of the law.

NAWL claims that, in the context of policies against violence against women, in order to fully ensure equal benefit and equal protection of the law for all women, government must also take concrete action to reduce patriarchal control over women’s lives and minimize social relations based on dominance. In addition, it must remedy social, economic, political and other disadvantages that result from sexual and other forms of discrimination.

In this context of reform, NAWL notes that piecemeal reforms to the criminal law pose significant hazards for women’s equality interests. A fragmented approach fails to question the basic building blocks of criminal law that perpetuate inequality, such as the doctrine of intent or mens rea; it may miss inequalities created by the interaction of various doctrines such as mens rea; it may miss inequalities created by the interaction of various doctrines such as mens rea and the defence of provocation; and it may generate problems in other doctrinal areas by the response chosen for a discrete issue. For these reasons, NAWL urges the federal government to undertake a consultation and reform process that looks at the larger criminal law picture, including the very question of whether codification of general principles is a law reform approach that is consistent with women’s equality rights.

In carrying out its Criminal Code reform project, the government must, at a concrete and not merely theoretical level, ensure that it respects and promotes the egalitarian principles guaranteed in the Charter and international human rights law. The Declaration on the Elimination of Violence Against Women provides that member states of the UN should “pursue by all appropriate means and without delay a policy of eliminating violence against women”. States must not only develop sanctions to punish and redress the wrongs caused to women who are subjected to sexual violence, but must also provide these women with access to the mechanisms of justice and to just and effective remedies for the harm that they have suffered. They must ensure that the re-victimization of women does not occur because of laws insensitive to their impact upon women, biased enforcement practices or other interventions that perpetuate women’s inequalities.

In this brief, we use this egalitarian legal framework to argue for the abolition of the defence of provocation, because of its sexist, homophobic, racist and patriarchal ramifications. We also argue for the abolition of all mandatory minimum sentences, in order to eliminate an arbitrary and unjust rule and to ensure that the individual circumstances of the offence and of the accused are appropriately considered. In the context of reform of defences to homicide, NAWL calls specifically for the repeal of the mandatory life sentence for murder, as well as the repeal of the new mandatory minimum sentence of four years imprisonment for those who use a firearm in the commission of a number of specific offences, including manslaughter. In addition, we will suggest ways of improving section 718 of the Criminal Code, which deals with sentencing, to provide fuller protection against bias at the stage of determining the sentence. We want to avoid the trivialization of the death of women and other persons vulnerable to bias and stereotyping, and conversely we want to ensure that abuses do not benefit from mitigation based on excuses arising out of prejudice and collective self-interest.

Sheehy, Elizabeth A., Stop Excusing Violence Against Women - NAWL's Position Paper on the Defence of Provocation (2000). Stop Excusing Violence Against Women-NAWL’s Position Paper on the Defence of Provocation. With Andrée Côté and Diana Majury.
Ottawa: National Association of Women and the Law, 2000, 45 pp.
. Available at SSRN: https://ssrn.com/abstract=2431768

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